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75 Cards in this Set

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FRE § 402: All relevant evidence is admissible; not relevant - not admissible.
CEC § 351: Except as otherwise provided by statute, all relevant evidence is admissible.
Material and/or Disputed
Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without it.
Conditional Relevance
Sometimes the relevance of the evidence will not be apparent - it will depend upon the existence of another fact that is yet to be proved. The judge may
let such evidence in subject to linking the facts later on in the case or
he may not allow it in until the condition has been satisfied.
Exclusion of Relevant Evidence
Evidence must be relevant to be admissible, but not all relevant evidence will be admitted. A trial judge has broad discretion to avoid injustice. The two categories such evidence would fall under are

1. Accuracy - though probative, still may be unduly prejudicial
2. Efficiency - slight probative value so not worth time - unduly cumulative

Exclusion is authorized only when the evidence is “unfair”
Probative Value vs. Prejudicial Effect
FRE § 403: Exclusion of Relevant Evidence: Although relevant, evidence may be excluded if its probative value is substantially outweighed by
The danger of unfair prejudice
Confusion of the issues
Misleading the jury
Considerations of undue delay
Waste of time
Needless presentation of cumulative evidence
CEC § 352: The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will
Necessitate undue consumption of time or
Create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
The question to be asked is
What is the evidence being offered to prove?

A piece of evidence may be inadmissible if it is offered for one purpose, but admissible if offered for a different purpose.
Preliminary Questions
FRE § 104: Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b).
In making its determination, it is not bound by the rules of evidence except those with respect to privileges.
Motions in Limine
Although most objections are made during the trial, parties often raise evidentiary issues w/the trial court before the trial starts through pre-trial motions called Motions in Limine (lemony).
In limine means at the threshold
Evidence Classifications
1. Direct Evidence - relies on actual knowledge
The strength of this evidence will depend on the jury’s estimate of the witness’ credibility

2. Circumstantial evidence relies on inference - no direct conclusion can be drawn from such evidence. Rather such evidence causes inferred existence of a material issue by the jury.

The strength of this evidence will depend upon
a)The jury’s estimate of the witness’s credibility
b)The number of inferences that must be drawn to get from testimony to conclusion to be drawn from it and
c)The strength of each of those inferences.
Limiting Instruction
When evidence that is admissible as to one party or for one purpose, but is not admissible as to another party or purpose is admitted, the court must, upon request, restrict the evidence to its proper scope by instructing the jury accordingly.
Competence of Witness
FRE § 601: every person is competent to be a witness except as otherwise provided in these rules

CEC § 700: except as otherwise provided by statute, every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter.
Skinner Test
Does the witness have
An understanding of truth vs. False statements?
The capacity to fulfill his obligation to tell the truth?
The ability to recount events (capacity of observation, recollection and comprehension)?
Personal Knowledge
FRE § 602 and CEC § 702 both require that the witness have personal knowledge of the matter to which he is testifying. The FRE require that evidence sufficient to support a finding that he does must be introduced.
Sixth Amendment - Confrontation Clause
In all criminal prosecutions, the accused shall enjoy the right to .... be confronted with the witnesses against him
Evidence of Character
Both 404(a) and 1101(a) bar evidence of a person’s character only if it is used to prove an action in conformity with such character on a particular occasion, e.g., He’s obviously guilty b/c look at what he’s done in the past. If that same character evidence is sought to establish something other than action in conformity with such character trait, it will be admissible.
Character Evidence Analysis
In dealing w/ Character evidence questions, it is helpful to use the “What, May, How” approach as the rules regarding this type of evidence are affected by three major areas of concern
What -- is the purpose for which the evidence is offered
May -- it be admitted - if so, then
How -- will it be introduced (what method)
How to Prove Character
Reputation evidence - always admissible w/ proper foundation
Opinion testimony - always admissible w/ proper foundation
Specific instances of conduct evidence - sometimes admissible
Character in Issue
Advisory Committee Note to 404(a): Character may itself be an element of a crime, claim or defense. A situation of this kind is commonly referred to as “character in issue.” Illustration: the competency of the driver in an action for negligently entrusting a car to an incompetent driver.
Exceptions to the Character Evidence Rule
D’s character is off-limits to the prosecution unless counsel for D “opens the door.”
Even if D opens the door, D’s character can only be proved with reputation or opinion evidence, not specific conduct.
Specific conduct OK if character is in-issue.
Specific Conduct of victim OK under CEC 1103 (Only Reputation and Opinion in Federal Court)
Specific conduct OK if introduced via FRE 404(b) or CEC 1101(b)
Character Evidence, Other Crimes
Generally not admissible, unless introduced for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. (9 elements) FRE requires that reasonable notice must be provided by the prosecution upon request by the accused, of the general nature of any such evidence it intends to introduce at trial. CEC has no notice requirement.
Evidence of habit of a person is relevant to prove that the conduct of the person on a particular occasion was in conformity with the habit. FRE § 406 and CEC § 1105
Prior Sexual Conduct of Victim
Rape shield laws provide special rules regarding the victim of sexual assault such as denying the D the right to introduce evidence of the V’s character (FRE § 412; CEC § 1103(c)). There are three situations where such evidence of prior sexual conduct or predisposition of the V will be admissible:
1. To prove that someone other than the D/accused was the source of semen, injury, or other physical evidence
2. To prove consent based on specific instances of sexual behavior between the V and the D
3. When it’s exclusion would violate the D’s constitutional rights to confrontation or due process
D’s Prior Sexual Misconduct
FRE § § 413, 414 and 415 and CEC § 1108 provide for the introduction of evidence of the D’s commission of other offense(s) of sexual assault or child molestation for consideration of its bearing on any relevant matter. The FRE allows it in both criminal and civil actions.
Similar Happenings
General Rule: When proponent can show that other Similar Happenings occurred under substantially similar circumstances, such evidence is admissible subject to Rule 403 (balancing) considerations. Burden of proof is on the proponent of the evidence.
Subsequent Remedial Measures or Precautions
General Rule: Evidence of remedial measures such a repairs, warnings, etc., following an injury is not admissible to prove negligence, culpable conduct, defect in the product or its design, or need for a warning or instruction. (FRE § 407, CEC § 1151)

A remedial measure is any measure that would have made an accident or injury less likely to occur if it had been in place prior to an accident or injury.

Such evidence may be allowed in to show ownership, control, notice, impeachment, or feasibility of precautionary measures if controverted.
Evidence or Offers to Compromise
Not admissible as proof of liability or for a claim that is disputed as to validity or amount
Not admissible to impeach through a prior inconsistent statement
The rule covers not only offers to settle, but also conduct and statements made during the compromise negotiations. (FRE § 408; CEC § 1152)
Best Evidence aka Original Document Rule / Writings
In proving the terms of a writing where the terms are material, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent and a duplicate is admissible to the same extent as an original unless:
1. A genuine question is raised as to the authenticity of the original or
2. Under the circumstances, it would be unfair to admit the duplicate in lieu of the original
Best Evidence Rule - FRE and CEC Distinguished
FRE: if the proponent has the original (or a duplicate) it comes in. Otherwise the attorney can lay foundation for secondary evidence by showing
The original is lost
Beyond subpoena power
In possession of other party
An authentic duplicate may be intro’d to the same extent as an original
Only if the original was destroyed in bade faith does secondary evidence stay out
Oral testimony is ok as secondary evidence
CEC: 1521 creates a general default rule that secondary evidence is admissible to prove the contents of a writing unless “a genuine dispute concerning material terms of the writing means that justice requires exclusion or reliance would be unfair. In a criminal case, not extended to oral testimony about the content of a writing in hands of proponent.
Authentication of Documents
In general, a writing may be authenticated by any evidence that serves to establish its authenticity.
Opinion Testimony
Opinion evidence includes all opinions, inferences, conclusions, and other subjective statements made by the Witness. The general policy of law is to restrict the admissibility of opinion evidence, except where the courts are sure that it will be necessary, or at least helpful.
Lay Opinions
Lay witnesses are called b/c they have personal knowledge about facts relevant to the case. The general rule is that opinions of lay witnesses are not admissible unless no better evidence can be obtained. It must be
Rationally based on the perception of the witness
Helpful to a clear understanding of the witness’ testimony or a determination of fact at issue and
Is not based on scientific, technical or specialized knowledge (FRE § 701)
Witnesses must state the facts before they state their opinions
When is Lay Opinion allowed?
In describing the
general appearance or condition of a person
State of emotion
Matters involving sense recognition
Voice or handwriting identification
Speed of moving object
Value of own services
Rational or irrational nature of another’s conduct (sanity)
Expert Opinion
Expert Witnesses are called b/c they posses some scientific, technical or specialized knowledge of a type that an ordinary juror is not likely to possess. Such a witness must be qualified as an expert, with such qualifications being presented by separate testimony.
Expert Testimony - Subject Matter
As long as the subject matter of the expert’s testimony would assist the trier of fact in understanding the evidence or determining a fact in issue, it will be allowed. (FRE § 702)

1. The expert opinion must be relevant to fit the facts of the case
2. The methodology underlying such opinion must be reliable

Based on sufficient facts or data
a) Is the product of reliable principles and methods
b) Has reliably applied the methods and principles to the facts in the instant case
Daubert Factors
Daubert v. Merrell Dow Pharmaceuticals enumerated several factors that the trial judges may use to determine if the proffered evidence is reliable:

1. The extent to which the theory or technique has been accepted in the scientific community (The Fry Test became merely a factor in judicial consideration)
2. Has the theory been subjected to scrutiny of peer review / publication
3. Has theory been tested
4. What is the known or potential rate of error
5. Are there means and standards for controlling its operation
Expert Testimony Analysis
Trial Judge makes this determination at FRE 104(a) Hearing (“Gatekeeper Function”).Court MAY use FRE 702, FRE 703, FRE 706, FRE 403.
Procedure of FRE 104(a) Hearing:
FRE 702 – MUST be scientific.
the testimony is based upon sufficient facts or data;
the testimony is the product of RELIABLE principles and methods; AND
the witness has applied the principles and methods reliably to the facts of the case.
NOTE: LOOK @ Daubert v. Merrell Dow Factors!!!
FRE 703 - Expert MAY rely on Hearsay.
Expert testimony is basically Hearsay - it is an application of everything that experts learned from out-of-courts statements … HOWEVER, Expert Witnesses, in a way ARE allowed to use SOME Hearsay!!!
THEREFORE, IF of a type reasonably relied upon by Experts in the particular field in forming opinions or inferences upon the subject, the facts or data need NOT be admissible in evidence in order for the opinion or inference to be admitted!!! … Expert MAY rely on treatises and texts - Opinion MUST be supported by factual basis!
FRE 706 - Expert assistance.
Court has discretion to appoint its own Expert Witness!!!
FRE 403 - Balancing Test.
Expert Testimony MAY be excluded IF its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury ….
Impeachment provides that the credibility of a witness may be attacked by any party, including the party calling the witness. (FRE § 607)
Methods of Impeachment
The primary method of impeachment is by cross examination
Usually accomplished through extrinsic proof that casts doubt on their credibility
In terms of relevance, any matter that tends to prove or disprove the credibility of the witness should be admitted.
Five Classic Modes of Impeachment
Character (e.g., dishonesty) FRE § 608; CEC § 1101(c)
Specific contradiction
Hearsay Rule
Hearsay is an out-of-court statement introduced to prove the truth of the matter asserted. (FRE § 801; CEC § 1200)
It is only hearsay if the assertion is being offered for its truth.
3 Important Considerations regarding Hearsay
Out-of-court statement refers to all statements, other than those made from the witness stand during the trial or proceeding in which they are introduced

Matter asserted refers to the matter asserted in the out-of-court statement itself - not necessarily that by the party offering the evidence

Witness is one who testifies; declarant is one who makes a statement of any kind.
Hearsay Analysis
Is there an out-of-court statement? Oral, written, assertive conduct
What is the statement being offered to prove?
The truth of the matter asserted, then it it hearsay
Any other purpose, then it’s not hearsay.
Offered for the mere fact the statement was made
To prove the effect it had on the hearer
To prove someone’s state of mind
Does the probative value of the statement depend on the credibility of the declarant?
If yes, then it’s hearsay
If no, then it’s not hearsay
If it’s offered for the truth of its assertion, is there an exception?
If yes, then what is the exception?
Hearsay Statement
A statement is
Oral assertion
Written assertion
Non-verbal conduct that is intended as an assertion
Assertion vs. Non-Assertive Verbal Conduct
An assertion is a cognitive thought made to state a fact or event or condition. (hearsay)
Non-assertive verbal conduct is a command, direction or question. These things are not assertions. (not hearsay)
Non-Assertive Conduct
Conduct that declarant did not intend as an assertion but which is being offered as an assertion. Under modern codes and FRE, such evidence is not hearsay.
People often act with not intent to communicate a message. If someone does something for the sake of doing it, it is non-assertive conduct - this can often be taken as an assertion. The ship captain who inspects the ship and then boards his family for the voyage. In so doing, he has indicated the seaworthiness of the ship for others to rely upon.
Silence as an Assertion
Silence in the face of a question may be considered an assertion and as such will not be admitted as hearsay.
Legally Operative Significance
There are certain utterances to which the law attaches legal significance:
Words of contract, defamation, bribery, cancellation, permission, etc. (not hearsay)
Double or Multiple Hearsay (Hearsay Within Hearsay)
When two or more out-of-court statements are offered for the truth of the matter asserted, each level of hearsay must be analyzed for it’s admissibility. If one level fails, none will be admissible. All must fall within its own exception to be admissible.
Exceptions to the Hearsay Rule
While hearsay evidence is not ordinarily admissible, certain kinds of hearsay are considered to have special guarantees of trustworthiness and are recognized exceptions to the hearsay exclusion.

There are five that require the Declarant to be unavailable:
Former Testimony
Declarations Against Interest
Dying Declarations
Statements Offered against Party Causing Declarant’s Unavailability

The unavailability of the Declarant is immaterial for the following
Spontaneous and Contemporaneous Exclamations (excited utterances)
State of Mind
Medical Diagnosis or Treatment
Business and Public records
Residual Exception
Miscellaneous Exceptions

The balance require the availability of the Declarant
Learned treatises
Past recollection recorded
Prior inconsistent statements
Prior consistent statements
Exemptions - Not Deemed Hearsay
Admissions by party-opponent
Prior identifications
There are five categories of admissions which are defined by relationship between the Declarant and the party against whom the statement is offered.
Direct Admissions (A)
Adopted Admissions (B)
Authorized Admissions (C)
Vicarious Admissions (D)
Conspirator Admissions (E)
Direct Admissions
A party’s own statements (FRE 801(d)(2)(A))
These are the most basic category - all others depend on it for their justification.
Adopted Admissions
Not hearsay if offered against a party and party manifests either expressly or impliedly an adoption or belief in its truth. (B)
Silence - if a statement is made in a party’s presence and that party fails to respond the the accusatory statement where a reasonable person would have spoken up, his silence may be considered and implied admission.
To be considered an admission, the party must have 1) heard and understood the statement and 2) have been able to deny it mentally and physically.
Authorized Admissions
Statement by a person authorized by the party to make a statement concerning the subject on his behalf (C)
Vicarious Admissions
Vicarious Admissions rule applies to statements made
By the party’s agent or servant of the party against whom they are introduced
Within the scope of the agency or employment
During the existence of the relationship. (D)
Three characteristics of agency relationship
Power to alter legal relationships b/w principal and 3rd party
Existence of fiduciary relationship towards principal
Right of principal to control agent’s conduct
Conspirator Admissions
Conspirator admissions applies to statements made
By co-conspirator of the party against whom they are introduced
During the course of the conspiracy and
In furtherance of the conspiracy
Unavailability as a witness includes situations in which the declarant
Is exempted on the ground of privilege
Refuses to testify despite court order
Testifies to lack of memory
Is unable to be present or to testify b/c of death or then existing physical or mental illness or infirmity
Is absent from the hearing and the proponent of the statement has been unable to procure the declarant’s attendance or testimony by process or other reasonable means
Is unavailable due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying
Declarations Against Interest
A statement of a person,
now unavailable as a witness,
against that person’s pecuniary, proprietary, or penal interest when made,
as well as collateral facts contained in the statement
is admissible (Not Hearsay) FRE § 804(b)(3).
Dying Declarations
A statement made by a now unavailable Declarant
while believing that his death was imminent,
concerning the cause or circumstances
of what the Declarant believed to be impending death
is admissible. (Not Hearsay) FRE § 804(b)(2) CEC § 1242
Declarant need not actually die, but must be unavailable
Statement must be based on personal knowledge
Former Testimony
Testimony of a now unavailable witness
given at another hearing, proceeding or deposition
while under oath or affirmation
is admissible in a subsequent trial
as long as there are sufficient similarities of the parties and issues
and the opportunity to develop the testimony or cross examine the witness was meaningful FRE § 804(b)(1) CEC § § 1290, 1291, 1292
Spontaneous and Contemporaneous Exclamations (Excited Utterances)
Statements that are made while the Declarant
is under the stress of excitement
caused by a startling event or condition and
where the statement relates to that event
Statement must be made contemporaneously or very soon after the occurrence
Present Sense Impression
A present sense impression is admissible
when a person is moved to describe, explain or comment
on an event or condition that he perceived
at the time of receipt of the sense impression
or immediately thereafter. (critical)
Present State of Mind
Declarant’s state of mind must be
relevant and
directly in issue and
material to the controversy to be admissible
Applies only to forward-looking and not backward-looking statements
Must usually be made under circumstances of apparent sincerity
Categories included are
Current belief
Current attitudes
Current mental feelings
Current physical condition (present symptoms)
If state of mind is not directly in issue, then statements of intent to do something in the future are offered to show subsequent acts of the declarant, i.e., the intent was carried out. (Hillman)
FRE § 803(3) CEC §§1250, 1251, 1252
Statements of Memory or Belief
As a rule these statements are not admissible if they are offered for proving the truth of the fact remembered or believed.
Exception occurs when offered to prove facts remembered or believed concerning the
Identification or
Terms of Declarant’s will (FRE 803(3))
Medical Diagnosis or Treatment
General rule is that statements made regarding past bodily conditions are not admissible.
Exception occurs when made to assist medical diagnosis or treatment.
May be made to anyone providing medical services
Need not be made by the injured person
Limited to statements made for purposes of med. diag. or treatment
Past symptoms, medical history, external cause of source of the condition, as long as it reasonably pertains to diagnosis/treatment.
Business Records
Keeping such records is a part of the business’ regular practice
The record was made in a regular course of business activity
The person making the record had a duty to make the entry
The record must be made at or near the time of the event or condition recorded
The record must be made by the employee with personal knowledge of the event
Won’t qualify if the source of the info or the method/circumstance of its preparation indicate a lack of trustworthiness
The authenticity of the record must be established (usually by custodian of records)
Public Records
Records, reports, statements or data compilations, in any form from a public office or government agency are admissible if they set forth information falling into any one of three categories of records that includes:

1. The activities of the office or agency itself
2. Matters that the law requires a public agency to observe and report
3. Factual findings, including opinions and conclusions, that result from an authorized governmental investigation, unless sources or other circumstances are untrustworthy.

Such records are admissible only in civil cases or against the government in criminal cases. These records contain conclusions as to fault, so very important.
Past Recollection Recorded
The witness has insufficient recollection to testify fully and accurately
At one time, had personal knowledge of the facts reciting in the writing
The writing was
Made by the witness or
Under the direction of the witness or
Was adopted by the witness
The writing was made at or near the time of the event or condition (matter fresh in the mind)
And was accurate when made
Prior Identifications
FRE § 801(d)(1)(C) - Exemption -
Witness must be available:
Prior identification
1)Need not be close in time of the occurrence
2)Can be received through witness of third party
3)Is admissible even if witness cannot make an I.D. in court
4)Is admissible even if witness cannot remember, or denies making the prior I.D.
Prior Inconsistent Statements
FRE § 801(d)(1)(A) - Exemption
A witness’s prior inconsistent statement is not hearsay if it was made under oath at a prior proceeding or deposition
Prior Consistent Statements
FRE § 801(d)(1)(B) - Exemption
A witness’s prior consistent statement, regardless of whether made under oath, is not hearsay if it is offered to rebut an express or implied charge that the witness is lying or exaggerating because of some motive
Must be made before the alleged motive to lie or exaggerate came into being
Residual Exception
FRE § 807- Exception
Even if the hearsay evidence does not fall under any of the hearsay exceptions, it is admissible if it possesses equivalent circumstantial guarantees of trustworthiness.
Must be offered on a material fact and must be more probative than any other evidence so that the interest of justice will be served
Requires reasonable notice to the adversary in advance of the trial, including name, address of declarant so as to afford fair opportunity to adversary.
No equivalent exception in California
Testimonial Statements
A statement to a law enforcement agent,
made in the course of a police interrogation,
under circumstances objectively indicating that there is NO on-going emergency,
and the primary purpose of the interrogation is to establish or prove past events,
which are potentially relevant to a future criminal prosecution.
Event is over and statements made under circumstances of formality and solemnity
Testimonial and therefore NOT admissible under Crawford
Non-Testimonial Statements
A statement to a law enforcement agent
made during the course of a police interrogation
under circumstances objectively indicating that the primary purpose of the interrogation
is to enable police assistance to meet an on-going emergency and
specifically not to testify to a past crime.
Not testimonial and therefore admissible under Crawford
A criminal D’s 6th amendment right to confront and cross-examine his accusers at trial requires the exclusion of a hearsay statement of a declarant that is testimonial in nature, when the declarant does not testify at trial, unless both of the following are shown:

1. The declarant is unavailable as a witness, and
2. The D had a prior opportunity to cross-examine the declarant